Who will be responsible for the taxes owed to the IRS in a divorce?

Asked over 1 year ago - Grand Junction, CO

My ex and I did not file taxes in 2011 yet because he would have owed $38,000.00 because he withdrew all of his 401 from work and received huge penalties for it. We did not have the money at the time to pay that so we chose to wait to file. We are not divorced yet so I have two questions, can I now (prior to the divorce) file a married filling separate tax return to relieve myself from his taxes owed? Or if I wait til the divorce is done can a judge order it to be his debt and not mine? Do I have to file together if the judge makes it his debt?

Attorney answers (5)

  1. Daniel Nelson Deasy

    Contributor Level 20

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    Answered . See my prior answer. The problem we have with the IRS is that they are not beholden to any state court judge's decisions. The IRS debt is going to come in both of your names and that creates some difficulty for you. I would need to know more to advise you on the risks of filing separately.

    DD

    In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship.... more
  2. Christopher Daniel Leroi

    Contributor Level 20

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    Answered . I agree wholeheartedly with Mr. Deasy. The IRS will go after both of you. You need to sit down with a family law attorney who is familiar with tax law. Good luck

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  3. Kristen Mclaughlin Tarrin

    Contributor Level 11

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    Answered . As far as divorce is concerned, any tax liability is considered a marital debt. Colorado tries to equitably distribute both assets and debts. Theoretically a court could order your husband to pay the entire debt but I'd he doesn't the IRS can still go after you.

    @KTarrinEsq (Twitter) ktarrin@rpitlerlaw.com The response given is not intended to create, nor does it create... more
  4. Anneshia Miller Grant

    Pro

    Contributor Level 18

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    Answered . There is some case law regarding who is responsible for tax liability in divorces. You need to meet with an attorney and discuss your situation in detail. Good luck.

    Responding to questions on AVVO does not establish an attorney-client relationship between the questioner and any... more
  5. Mary Kate Kelley-Scheidler

    Contributor Level 3

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    Answered . In your situation I would suggest filing a Married Filing Separate (MFS) tax return. Do it as soon as possible. i do not know what jurisdiction you live in so I cannot speak to what a Judge will or will not order. In your situation you can limit you personal tax liability for the distribution your husband received from his 401(k) by filing MFS. If you file a Married Filing Joint (MFS) tax return with your husband, you will be joint and severally liable for the taxes owed. MFS is your best option; and the sooner the better.

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